By Jehan Perera –
By co-sponsoring the resolution on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka the government has taken the initiative with regard to the implementation of its recommendations. Some of the recommendations are controversial. The main controversial recommendation is to set up a judicial accountability mechanism with international participation. But the gain for the government is that it is in charge of the implementation. In addition, for the first time since 2009 when Sri Lanka was taken before the UN Human Rights Council in Geneva, the government succeeded in obtaining the unanimity of the members of the international community represented there regarding Sri Lanka’s future.
The time table for reporting back to the UN Human Rights Council gives the government a degree of flexibility in getting its implementation mechanisms in order. The government is expected to give its written report on implementation in March 2017, which is 18 months away. At that time the government will have to defend and justify its progress or lack thereof in the implementation of the recommendations to be found in the resolution. Prior to that there will be a continuous assessment made of the implementation of the recommendations by the UN High Commissioner who will also be giving an oral update to the UN Human Rights Council in nine months.
As can be expected the opposition parties took the view that the government gave in to the Western led international community by agreeing to co-sponsor the resolution on Sri Lanka. They have argued that by co-sponsoring the resolution, the government is left with no option but to implement the recommendations which have been imposed on Sri Lanka. The previous government which was led by those who are now in the opposition argued that the successive resolutions of the UN Human Rights Council were damaging to Sri Lanka’s interests. But they could not prevent the resolutions being passed despite their opposition, and each time the resolution was stronger in terms of what was being imposed on the country.
The previous government’s strategy of seeking to defy the United States and other Western countries in the UN Human Rights Council led to three successive defeats for Sri Lanka. By aggressively countering and opposing those countries the previous government also began to internationalise its differences with them. The last resolution of the UN Human Rights Council in 2014 established an international investigation under the aegis of the UN Human Rights Commissioner that probed the allegations of human rights violations and war crimes in the last phase of the country’s war. There was anticipation that in the event of further resistance from Sri Lanka, further unilateral measures would be imposed on the country by the Western led international community.
However, by co-sponsoring the present resolution, the new government has succeeded in reducing the level of imposition. The government’ decision to co-sponsor the resolution on the future its post-war accountability process means that Sri Lanka has the status of an equal partner. The fact of co-sponsorship implies that the Sri Lankan government will be party in charge of implementing the recommendations, and this would be within its sphere of control. The tilting of the balance in favour of Sri Lanka is also reinforced by the reference to a Sri Lankan judicial mechanism in the resolution. The government has announced a mechanism to deal with the past that will be based on four components. It will include a Commission for Truth, Justice, Reconciliation, an Office of Missing Persons, a judicial mechanism with special counsel to be set up by statute and an Office of Reparations.
The international community is showing that it is aware of the problems posed to the government in addressing the issues of human rights violations due to the war. The Western led international community is seen in an adverse light by the nationalist sections of the Sinhalese who allege that there will be danger to Sri Lanka from it and from the Tamil Diaspora. This means that the government has to tread carefully in dealing with the Geneva process. So far the government’s approach to the release of the UN report appears to have induced a moderate approach on the part of the general population to the issue of possible war crimes of the past. As a result the space has opened up for rational dialogue within the country as to what needs to be done to heal the past wounds and unite to face the challenges of the future.
Due to the new government’s cooperative approach, the international community also appears to have tried to tone down the resolution to meet some of the concerns of the Sri Lankan government. An analysis of the resolution by the South Asian Centre for Legal Studies (SACLS) provides a commentary on each paragraph of the solution argues that the US and other co-sponsoring countries “were very keen that the text of the resolution reflect the changes that took place in Sri Lanka after January 2015 (presidential election) and thereafter again in August (general election).” It also noted that the US ambassador in Geneva repeatedly stated that “the resolution should reflect two realities: First the change that had happened in Sri Lanka, and second the gravity and seriousness of the violations of human rights and crimes contained in the UN report.”
Thus, the resolution noted in a positive manner the passage of the 19th Amendment and its potential contribution to promoting democratic governance, including strengthening judicial independence within the country. It also highlighted the positive steps taken by the government to improve life for the war-affected people of the North and East, and acknowledged the progress made by the government in rebuilding infrastructure, demining, returning land taken over as high security zones and resettling displaced persons. The analysis by SACLS also notes that the drafters of the resolution were also sensitive to phraseology, and gave deference to the Sri Lankan government’s preferences. Instead of calling on the UN High Commissioner to monitor the implementation of the recommendations it used the alternative formulation of assessing rather than monitoring.
Now that the session of the UN Human Rights Council in Geneva is over, the government’s attention will necessarily have to turn to Sri Lanka. Prime Minister Ranil Wickremesinghe has taken the lead in addressing the country on the contents of the resolution and what it means. He is reported to have met with the top military and police commanders and explained the Geneva process and resolution to them. It will also be necessary to take this message to the larger civil society. This can be done both through NGOs and also government servants who reach vast numbers of the general public. It is largely civil society work that has created a general environment in post-war Sri Lanka that demonstrated a positive resistance to attempts to re-ignite ethnic nationalism within society.
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